Comments on: As Expected

By: Bryan

Bryan — Wed, 02 Feb 2011 06:00:29 +0000

I just don’t believe that they “accidentally” left out the severability clause. I suspect it was intentional, as was calling the fee a penalty, in the mandate section. These are first year law student mistakes. I think the law was designed to self-destruct by the staff in the Senate.

Bill McCollum was the Florida Attorney General when the law was passed. No one will ever accuse him of being the sharpest knife in the drawer, but the day after the law was passed he filed suit in Pensacola. He went after two things: the mandate and severability. McCollum spent years in DC as a Congresscritter, so he knows people. I don’t believe in coincidences.

While I agree that Kennedy is the nominal swing vote, I wouldn’t put any money on Sotomayer’s vote. It is a terribly written law, and I’m used to reading the amateur class stuff that was put in the New York State Penal Law by the semi-literates in the state legislature.

By: Steve Bates

Steve Bates — Wed, 02 Feb 2011 04:58:21 +0000

Higgledy-piggledy,
Judicial activists,
Filling the Prez and the
Senate with dread;
If you oppose them on
Severability,
That which they sever is
Likely your head.

– SB the YSS

By: Bryan

Bryan — Wed, 02 Feb 2011 01:34:27 +0000

Kennedy will decide this case, and it is a coin flip as to what he will decide. He is the swing vote.

By: Ame

Ame — Tue, 01 Feb 2011 23:57:11 +0000

“Ame, I wouldn’t accept Scalia’s opinion on a parking ticket.”

Hoooot!!

Nor would I, but it’s funny as heck to me that so many rightwingers are anticipating that SCOTUS will affirm Vinson’s ruling and they cite Scalia as being ‘on their side.’

By: Bryan

Bryan — Tue, 01 Feb 2011 17:33:16 +0000

No, Steve, the lawyers on FDL are wrong, a “severability clause” has normally been included in recent years, but not always, and judges are not required to mind read. Vanderbilt is not an out of the main stream law school. Judge Vinson does not imagine what is not there. Judge Hudson gave Congress the benefit of doubt on that issue, but Judge Vinson just reads the law as written.

It is a badly written law, I know, I’ve read it. It is poorly constructed and patchwork of things thrown together. The severability clause is missing because no one was in charge of its overall construction. Severability clauses should be part of the boilerplate, and normally are.

As both Judges Hudson and Vinson have said – you can’t call something a tax when it is called a penalty in the law that created it. The mandate doesn’t impose a tax on people, it imposes a penalty, and having the IRS collect it doesn’t change it.

A public option was the only Constitutional way of doing this, and Medicare-for-All would have sailed through all challenges.

Judge Vinson has kicked a lot of abortion protester butt in his court room, and he doesn’t go in for novel legal concepts. He is not someone you want to appear before with Tea Party concepts, but you want him there for First Amendment cases.

Ame, I wouldn’t accept Scalia’s opinion on a parking ticket.

By: Ame

Ame — Tue, 01 Feb 2011 16:02:57 +0000

Scalia Explains the Constitutionality of the Individual Mandate

http://yglesias.thinkprogress.org/2010/03/scalia-explains-the-constitutionality-of-the-individual-mandate/

What The Tea Party Could Learn From Justice Scalia Today

http://thinkprogress.org/2011/01/24/scalia-bachmann/

Ahhhh! It looks like it’s gonna be a fun week, folks!! 🙂

By: Steve Bates

Steve Bates — Tue, 01 Feb 2011 13:48:25 +0000

I’ve been told by lawyers on one of FDL’s threads that severability is the default… i.e., if there is no clause one way or the other, the presumption is supposed to be that the components are severable. Judge Vinson must have gone to some special law school where they taught him something different. Or maybe it’s a wholly political gesture. Or maybe he’s just doing his “Christian” duty, like Justice Scalia.

Wikipedia is not helpful on the matter.